Fountain Creek: Pueblo County DA asking the state Supreme Court to overturn the July appeals court decision


From The Pueblo Chieftain (Chris Woodka):

A dispute over water quality is heading to the state Supreme Court. District Attorney Jeff Chostner today is asking the state Supreme Court to overturn a July 18 appeals court decision that Pueblo District Judge Victor Reyes erred in ordering the state to redo its assessment of impacts of the Southern Delivery System on Fountain Creek and the Arkansas River.

Reyes issued his decision last year, siding with former District Attorney Bill Thiebaut in finding that the Colorado Water Quality Control Commission ignored its own standards and accepted a “gut feeling” methodology in issuing a federal permit required for SDS.

Attorney John Barth of Hygiene, who has represented both Chostner and Thiebaut in the case, argued that a scientific methodology, including a numeric standard is needed. He argued increased flows on Fountain Creek and changes in the flows of the Arkansas River through Pueblo could increase pollutants like selenium and sediment.

Colorado Springs attorney David Robbins presented counterarguments that water quality issues would be addressed as they arose through an adaptive management plan outlined in the Bureau of Reclamation’s environmental impact statement for the project.

During a deposition for a December 2010 hearing, the state employee who performed the analysis for the SDS impacts said he relied on a “gut feeling” in his assessment of impacts.

In the brief that is being filed today, Barth argues that selenium levels through Pueblo will double or triple under SDS changes, yet the state determined there would be “no degradation.”

At the December 2010 hearing, Robbins and Colorado Springs Utilities officials made the case that impacts from SDS won’t show up for years, so numeric standards now would not be applicable.

Reyes ordered the commission to hold new hearings and develop a permit based on scientific standards. A panel of three appeals court judges rejected the Reyes decision, largely on procedural grounds because he did not do a “rigorous investigation” of claims.

Meanwhile, monsoon rains have caused a good deal of damage to Colorado Springs’ stormwater facilities. Here’s a report from Bill Folsom writing for

Emergency repairs are necessary to the Colorado Springs storm water system following last weeks unusually heavy rain storm. Storm drains have been exposed, there is damage to detention ponds, and erosion has compromised infrastructure.

Storm water mangers have been running the numbers and calculate nearly four inches of rain fell in just hours on the far north side of the city. The amount equals what they call a 200 year storm. “We do not design for a 200 year storm. We’re up to 100 years,” said Colorado Springs Storm Water Manger, Tim Mitros, “So this was a rarity and our storm sewer system was just totally overwhelmed.” The price tag for the damage to the storm water system is approaching one million dollars.

More Fountain Creek coverage here and here.

Leave a Reply